2. The definition of "service supplied in the exercise of governmental authority" in Article 7.2 (Definitions) of Chapter 7 (Trade in Services) shall not apply to services covered by this Annex.
For the purposes of this Annex:
(a) financial service is any service of a financial nature offered by a financial service supplier of a Party. Financial services include all insurance and insurance-related services, and all banking and other financial services (excluding insurance). Financial services include the following activities:
Insurance and insurance-related services
(i) direct insurance (including co-insurance):
(A) life; and
(B) non-life;
(ii) reinsurance and retrocession;
(iii) insurance intermediation, such as brokerage and agency;
(iv) services auxiliary to insurance, such as consultancy, actuarial, risk assessment and claim settlement services;
Banking and other financial services (excluding insurance)
(v) acceptance of deposits and other repayable funds from the public;
(vi) lending of all types, including consumer credit, mortgage credit, factoring and financing of commercial transaction;
(vii) financial leasing;
(viii) all payment and money transmission services, including credit, charge and debit cards, travellers cheques and bankers drafts;
(ix) guarantees and commitments;
(x) trading for own account or for account of customers, whether on an exchange, in an over-the-counter market, or otherwise, the following:
(A) money market instruments (including cheques, bills, certificates of deposits);
(B) foreign exchange;
(C) derivative products including, but not limited to, futures and options;
(D) exchange rate and interest rate instruments, including products such as swaps, forward rate agreements;
(E) transferable securities; and
(F) other negotiable instruments and financial assets, including bullion;
(xi) participation in issues of all kinds of securities, including underwriting and placement as agent (whether publicly or privately) and provision of services related to such issues;
(xii) money broking;
(xiii) asset management, such as cash or portfolio management, all forms of collective investment management, pension fund management, custodial, depository and trust services;
(xiv) settlement and clearing services for financial assets, including securities, derivative products, and other negotiable instruments;
(xv) provision and transfer of financial information, and financial data processing and related software by suppliers of other financial services; and
(xvi) advisory, intermediation and other auxiliary financial services on all the activities listed in paragraphs 3(a)(v) through 3(a)(xv), including credit reference and analysis, investment and portfolio research and advice, advice on acquisitions and on corporate restructuring and strategy;
(b) financial service supplier means any natural or juridical person of a Party wishing to supply or supplying financial services but does not include a public entity; and
(c) public entity means:
(i) a government, a central bank or a monetary authority of a Party, or an entity owned or controlled by a Party, that is principally engaged in carrying out governmental functions or activities for governmental purposes, not including an entity principally engaged in supplying financial services on commercial terms; or
(ii) a private entity performing functions normally performed by a central bank or monetary authority, when exercising those functions.
Article 3. DOMESTIC REGULATION
1. Notwithstanding any other provisions of this Chapter, a Party shall not be prevented from adopting or maintaining reasonable measures for prudential reasons, including for:
(a) the protection of investors, depositors, policy-holders, policy-claimants, persons to whom a fiduciary duty is owed by a financial service supplier, or any similar financial market participants; or
(b) ensuring the integrity and stability of that Party's financial system.
2. Where such measures do not conform with the provisions of this Chapter, they shall not be used as a means of avoiding that Party's commitments or obligations under this Chapter.
3. Nothing in this Chapter shall be construed to require a Party to disclose information relating to the affairs and accounts of individual customers or any confidential or proprietary information in the possession of public entities.
Article 4. RECOGNITION
1. A Party may recognise prudential measures of the other Party, or a non-Party, in determining how the Party's measures relating to financial services shall be applied. Such recognition, which may be achieved through harmonisation or otherwise, may be based upon an agreement or arrangement with the other Party, or a non-Party concerned, or may be accorded autonomously.
2.A Party that is a party to such an agreement or arrangement referred to in paragraph 1, whether future or existing, shall afford adequate opportunity for the other Party to negotiate its accession to such agreements or arrangements, or to negotiate comparable ones with it, under circumstances in which there would be equivalent regulation, oversight, implementation of such regulation, and, if appropriate, procedures concerning the sharing of information between the Parties to the agreement or arrangement.
3. Where a Party accords recognition autonomously, it shall afford adequate opportunity for the other Party to demonstrate that such circumstances as referred to in paragraph 2 exist.
Article 5. REGULATORY TRANSPARENCY
1. The Parties recognise that transparent measures governing the activities of financial service suppliers are important in facilitating their ability to gain access to and operate in each other's market.
2. Each Party shall ensure that measures of general application adopted or maintained by a Party are promptly published or otherwise made publicly available.
3. Each Party shall take such reasonable measures as may be available to it to ensure that the rules of general application adopted or maintained by self- regulatory organisations (8) of the Party are promptly published or otherwise made publicly available.
4. Each Party shall maintain or establish appropriate mechanisms for responding to inquiries from interested persons (9) of the other Party regarding measures of general application to which this Annex applies.
5. Each Party's regulatory authorities shall make publicly available their requirements, including any documentation required, for completing applications relating to the supply of financial services.
6. Each Party's regulatory authorities shall make administrative decisions on a completed application of a financial service supplier of the other Party seeking to supply a financial service in that Party's territory within 180 days and shall notify the applicant of the decision where possible in writing, without undue delay:
(a) an application shall not be considered complete until all relevant proceedings are conducted and the regulatory authorities consider all necessary information has been received; and
(b) where it is not practicable for a decision to be made within 180 days, the regulatory authority shall notify the applicant without delay and shall endeavour to make the decision within a reasonable time thereafter.
7. On the written request of an unsuccessful applicant, a regulatory authority that has denied an application shall endeavour to inform the applicant of the reasons for denial of the application in writing.
Article 6. DISPUTE SETTLEMENT
Arbitrators on an arbitral tribunal established in accordance with Chapter 15 (Dispute Settlement) for disputes on prudential issues and other financial matters shall have the necessary expertise relevant to the specific financial service under dispute.
Article 7. CONSULTATIONS
A Party may request consultations with the other Party regarding any matter arising under this Agreement that affects financial services. The other Party shall give sympathetic consideration to the request.
ANNEX B. MOVEMENT OF NATURAL PERSONS
Article 1. SCOPE
1. This Annex shall apply to measures affecting the movement of natural persons of a Party into the territory of the other Party under categories as referred to in Annex III (Schedules of Specific Commitments on Trade in Services).
2. This Annex shall not apply to measures affecting natural persons of a Party seeking access to the employment market of the other Party, nor shall it apply to measures regarding citizenship, nationality, residence, or employment on a permanent basis.
3. Nothing contained in this Agreement shall prevent a Party from applying measures to regulate the entry or temporary stay of natural persons of the other Party in its territory, including measures necessary to protect the integrity of its territory and to ensure the orderly movement of natural persons across its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing to the other Party under this Annex. (10)
Article 2. DEFINITIONS
1. For the purposes of this Annex:
(a) natural person of a Party means a natural person of a Party as defined in Chapter 7 (Trade in Services).
(b) temporary entry means entry by a natural person covered by Annex III (Schedules of Specific Commitments on Trade in Services) without the intent to establish permanent residence and for the purpose of engaging in activities, which are clearly related to their respective business purposes.
(c) immigration measure means any measure, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form, affecting the entry and stay of foreign nationals in the territory of a Party.
Article 3. OBJECTIVES
This Annex reflects the preferential trading relationship between the Parties, their mutual desire to facilitate temporary entry for a natural person in accordance with Annex III (Schedules of Specific Commitments on Trade in Services), while recognizing the need to ensure border security and to protect domestic labour force and permanent employment in their respective territories.
Article 4. GENERAL PRINCIPLES FOR GRANT OF TEMPORARY ENTRY
1. Each Party shall set out in Annex III (Schedules of Specific Commitments on Trade in Services) the specific commitments it undertakes for each of the categories of natural persons specified therein.
2. Where a Party makes a commitment under paragraph 1, that Party shall grant temporary entry of natural persons of the other Party, as provided for in the commitment, given that such natural persons are otherwise qualified under all applicable immigration measures.
3. Temporary entry granted in accordance with this Annex does not replace the requirements needed to carry out a profession or activity in accordance with the applicable laws and regulations in force in the territory of the Party authorizing the temporary entry.
Article 5. TRANSPARENCY
Each Party shall, upon modifying or amending an immigration measure that affects the temporary entry of natural persons, ensure that such modifications or amendments are promptly published and made available in such a manner as will enable natural persons of the other Party to become acquainted with them.
Article 6. RELATION WITH OTHER CHAPTERS OF THE AGREEMENT
1. Except for this Annex, Chapters 1 (Initial Provisions and Definitions), 13 (Transparency), 14 (Administrative and Institutional Provisions), 15 (Dispute Settlement), 16 (Exceptions), and 17 (Final Provisions), no provision of this Agreement shall impose any obligation on a Party regarding its immigration measures within the scope of this Annex.
2. Nothing in this Annex shall be construed to impose obligations or commitments with respect to other Chapters of this Agreement.
Chapter 8. Investment
Section A.
Article 8.1. DEFINITIONS
For purposes of this Chapter:
1996 Agreement means the Agreement between the Government of the People's Republic of China and the Government of the Republic of Mauritius for the Reciprocal Promotion and Protection of Investments done at Port Louis on 4th May, 1996;
central level of government means:
(a) for the People's Republic of China, the central level of government; and (b) for the Republic of Mauritius, the Government of the Republic of Mauritius;
Centre means the International Centre for Settlement of Investment Disputes (hereinafter referred to as "ICSID") established by the ICSID Convention;
claimant means an investor of a Party that is a party to an investment dispute with the other Party;
covered investment means, with respect to a Party, an investment in its territory of an investor of the other Party in existence as of the date of entry into force of this Agreement or established, acquired, or expanded thereafter, in accordance with the laws and regulations of that Party;
disputing parties mean the claimant and the respondent;
disputing party means cither the claimant or the respondent;
enterprise means any entity constituted or organized under applicable law, whether or not for profit, and whether privately or governmentally owned or controlled, including a corporation, trust, partnership, sole proprietorship, joint venture, association, or similar organization, and a branch of an enterprise;
enterprise of a Party means an enterprise constituted or organized under the
law of a Party and a branch located in the territory of a Party and carrying out business activities there;
freely usable currency means "freely usable currency" as determined by the International Monetary Fund under its Articles of Agreement;
government procurement means the process by which a government obtains the use of or acquires goods or services, or any combination thereof, for governmental purposes and not with a view to commercial sale or resale, or use in the production or supply of goods or services for commercial sale or resale;
ICSID Additional Facility Rules means the Rules Governing the Additional Facility for the Administration of Proceedings by the Secretariat of the International Centre for Settlement of Investment Disputes;
ICSID Convention means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, done at Washington, March 18, 1965;
investment means every asset that an investor owns or controls, directly or indirectly, that has the characteristics of an investment, including such characteristics as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk. Forms that an investment may take include:
(a) an enterprise;
(b) shares, stock, and other forms of equity participation in an enterprise;
(c) bonds, debentures, loans, and other debt instruments, including debt instruments issued by a Party or an enterprise; (1)
(d) turnkey, construction, management, production, concession, revenue-sharing, and other similar contracts;
(e) intellectual property rights;
(f) licenses, authorizations, permits, and similar rights conferred pursuant to domestic law; (2) (3) and
(g) other tangible or intangible, movable or immovable property, and related property rights, such as leases, mortgages, liens, and pledges;
investment agreement means a written agreement (4) between a national authority (5) of a Party and a covered investment or an investor of the other Party, on which the covered investment or the investor relies in establishing or acquiring a covered investment other than the written agreement itself, that grants rights to the covered investment or the investor:
(a) with respect to natural resources that a national authority controls, such as for their exploration, extraction, refining, transportation, distribution, or sale;
(b) to supply services to the public on behalf of the Party, such as power generation or distribution, water treatment or distribution, or telecommunications; or
(c) to undertake infrastructure projects, such as the construction of roads, bridges, canals, dams, or pipelines, that are not for the exclusive or predominant use and for the benefit of the government;
investor of a non-Party means, with respect to a Party, an investor that has made an investment in the territory of that Party, that is not an investor of either Party.
investor of a Party means a Party, a national or an enterprise of a Party, that has made an investment in the territory of the other Party;
measure includes any law, regulation, procedure, requirement, or practice;
national means:
(a) for China, a natural person who is a national of the People's Republic of China as defined in the Nationality Law of the People's Republic of China; and
(b) for Mauritius, a natural person who is a citizen of Mauritius within the meaning of its national laws.
For the purposes of this definition, a natural person who is a dual national shall be deemed to be exclusively a national of the State where he or she ordinarily or permanently resides;
non-disputing Party means the Party that is not a party to an investment dispute;
person means a natural person or an enterprise; person of a Party means a national or an enterprise of a Party;
protected information means confidential business information or information that is privileged or otherwise protected from disclosure under a Party's law;
respondent means the Party that is a party to an investment dispute; Secretary-General means the Secretary-General of ICSID;
territory (6) means:
(a) with respect to China,
(i) the customs territory of China; (7)
(ii) the territorial sea thereof and any area beyond the territorial sea within which China may exercise sovereign rights or jurisdiction under its law;
(b) with respect to Mauritius,
(i) all the territories and islands which, in accordance with the laws of Mauritius constitute the State of Mauritius;
(ii) the territorial sea of Mauritius; and
(iii) any area outside the territorial sea of Mauritius which in accordance with international law has been or may hereafter be designated, under the laws of Mauritius, as an area, including the Continental Shelf, within which the rights of Mauritius with respect to the sea, the sea-bed and sub-soil and their natural resources may be exercised;
TRIPS Agreement means the Agreement on Trade-Related Aspects of Intellectual Property Rights, contained in Annex 1C to the WTO Agreement; (8)
UNCITRAL Arbitration Rules means the arbitration rules of the United Nations Commission on International Trade Law.
Article 8.2. SCOPE AND COVERAGE
1. This Chapter applies to measures adopted or maintained by a Party relating to:
(a) investors of the other Party; and
(b) covered investments.
2. A Party's obligations under Section A shall apply:
(a) to all levels of government of that Party; and
(b) to any non-governmental body when it exercises any regulatory, administrative, or other governmental authority delegated to it by that Party (9).
3. For greater certainty, this Chapter does not bind either Party in relation to any act or fact that took place or any situation that ceased to exist before the date of entry into force of this Agreement.
4. This Chapter shall not apply to measures adopted or maintained by a Party to the extent that they are covered by Chapter 7 (Trade in Services).